Wagering on player performance deemed right of publicity violation, lawsuit says.

Hundreds of millions of dollars are wagered each week online by fantasy sports enthusiasts looking to profit from professional players' on-field performances.

But do the players deserve a piece of the ever-growing wagering pie? That's the latest legal saga now playing itself out in a court of law. Washington Redskins wide receiver Pierre Garcon is suing the popular online fantasy site FanDuel, saying the site is profiting off his and fellow NFL players' backs without their permission. His federal suit seeks class-action status to represent all affected NFL players.

The question of whether players own their on-the-field performance data—combined with whether FanDuel misappropriates NFL players' likenesses via thousands of FanDuel television commercials—is what's at the heart of Garcon's lawsuit.

The case poses the esoteric question of whether it's even possible to lawfully wager on somebody's performance without somehow violating their right of publicity. A leading case on the issue, at least insofar as stats go, dates to 1997. A federal appeals court struck down the National Basketball Association's claims that the game's stats were copyrighted. The court ruled in favor of a Motorola pager that disseminated real-time game info.

In the operation and sale of online daily fantasy football gaming products, Defendant FanDuel knowingly and improperly exploits the popularity and accomplishments of current Washington Redskins wide receiver Pierre Garçon, along with all the other National Football League ("NFL") players at offensive skilled positions. In addition, through a comprehensive advertising campaign and in its daily fantasy football contests, Defendant FanDuel routinely uses the names and likenesses of these NFL players to promote FanDuel's commercial enterprise, collecting huge revenues from entry fees, without the authority of Mr. Garçon or the other NFL players. Plaintiff and the proposed Class members have not given their consent to Defendant's blatant misappropriation of their publicity rights. Nevertheless, Defendant FanDuel continues to promote and to operate its daily fantasy football contests on the backs of NFL players, whose popularity and performance make the Defendant’s commercial daily fantasy football product possible.

FanDuel, meanwhile, said the lawsuit was "without merit."

Further Reading

"There is established law that fantasy operators may use player names and statistics for fantasy contests," Justine Sacco, a FanDuel spokesman, said in a statement. "FanDuel looks forward to continuing to operate our contests which sports fans everywhere have come to love."

Sacco was referencing the year 2006, when Congress prohibited credit card companies from assisting gamblers in wagering on online sites. One exception carved out "participation in any fantasy or simulation sports game or educational game or contest." FanDuel and rival DraftKings say they offer fantasy wagering on various sports because of that exemption.

DraftKings was not named in the suit and has a marketing agreement with the NFL Players Association.

Both DraftKings and FanDuel, meanwhile, find themselves at a legal crossroads as Congress and other regulators begin probing whether online fantasy sports wagering is even legal.

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David Kravets
The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper. Emaildavid.kravets@arstechnica.com//Twitter@dmkravets